On July 10, 1941, the Steamship “Western Sword” was at the Port of Galveston, Texas, to take on a cargo of sulphur to be shipped by the Texas Gulf Sulphur Company. Appellant and another, both employees of the Sulphur Company, went upon the Ship on that date to inspect her holds and determine whether they were clean and in condition for taking on a cargo of sulphur. The Ship had formerly been equipped with cargo battens (planks or strips of wood) held in place by “cleats” *207(also called “angle irons” or “cargo board hangers”) made of iron. The cargo battens were not needed in shipping sulphur and had been removed, but the cleats remained. It was necessary in inspecting the Ship for Appellant to climb about, and in doing so, he, instead of using the ladders belonging to the Ship, which were available, used the cleats, and because the bolt or bolts holding it had rusted, one of the cleats, when his weight was placed upon it, broke or came loose, causing him to fall, and he was injured.
Thereupon, Appellant brought this suit in Admiralty against the Ship for damages for such injury, charging unseaworthiness of the Ship and that she and her owners were negligent.1
The Owners appeared, answered specially, and only as Claimants of the Ship, denied negligence, claimed Appellant to be guilty of negligence, pleaded assumed risk, and set forth that Appellant had been paid compensation for his injury under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., and that this suit, if prosecuted at all, should be prosecuted by Appellant’s employer, the Sulphur Company. Judgment went for Appellee, and Appellant is here complaining. The Trial Judge filed Findings of Fact, which we find well supported by the evidence, and which we approve.
The cleats were placed and maintained in the Ship solely to hold the cargo battens in place and not for use by Appellant or others in climbing about inspecting the Ship. Appellee owed Appellant no duty to maintain them so that Appellant could safely use them to climb upon, and the Ship was not rendered unseaworthy because of Appellee’s failure to do so, nor was such failure negligence unless Appellee knew, or under the facts should have known, or was charged with notice, that Appellant intended to and would so use them. The Queen Elizabeth, D.C., 209 F. 712, Consolidation Coastwise Co. v. Conley, 1 Cir., 250 F. 679, 680, New Orleans Coal & Bisso Towboat Co. v. United States, 5 Cir., 86 F.2d 53, Smith v. United States, 5 Cir., 96 F.2d 976.
The Trial Judge found that Appellee had no means of knowing and did not know before the injury that Appellant was on the Ship for the purpose of inspecting it, and had no reason to believe that he would go on the Ship and make use of the cleats in climbing to make the inspection. Appellant and several of the other witnesses testified to a local custom of persons using the cleats instead of the ladders in inspecting ships, but the Trial Judge made no specific finding on the point. He did find that if there was such a local custom, that it was conclusively shown that Appellee did not know of it. He also found that there was no such general custom, but that it was the general custom, which was known to Appellee, for persons so inspecting ships to make use of ladders, and that ladders were available on the Ship and would have been furnished Appellant at his request. That neither Appellant nor his fellow employee requested the use of ladders.8
The Judgment for Appellee was right. It is affirmed.